Local Laws Fighting Fat Under Siege

Several state legislatures are passing laws that prohibit municipalities and other local governments from adopting regulations aimed at curbing rising obesity and improving public health, such as requiring restaurants to provide nutritional information on menus or to eliminate trans fats from the foods they serve.

In some cases, lawmakers are responding to complaints from business owners who are weary of playing whack-a-mole with varying regulations from one city to the next. Legislators have decided to sponsor state laws to designate authority for the rules that individual restaurants have to live by.

Florida and Alabama recently adopted such limits, while Georgia, Tennessee and Utah have older statutes on their books. Earlier this year, Arizona prohibited local governments from forbidding the marketing of fast food using “consumer incentives” like toys.
And this week, Ohio Gov. John Kasich signed the state budget, which contains sweeping limitations on local government control over restaurants.

“All of sudden we’re seeing this legislation get slipped into pending bills at the 11th hour under the radar of public health advocates, which will pre-empt local governments from adopting policies that would improve health in their communities,” said Samantha Graff, senior staff lawyer at Public Health Law & Policy, a nonprofit group that works to combat obesity, among other issues.

The new state laws will have no effect on a federal law that requires menu labeling by chains with 20 or more restaurants by 2013. But more than half of the nation’s restaurants will not be required to meet the federal rules for listing calories and fat content.

Sue Hensley, a spokeswoman for the National Restaurant Association, said it supported the efforts of its state members to protect restaurants from what she described as “a patchwork of regulation.”

“We feel it is in the best interests of the consumer to have one uniform standard,” Ms. Hensley said.

Public health advocates worry that the new laws will stall a movement among cities and counties that are putting in place a wide range of policies and tools aimed at stemming the rising tide of obesity among their residents. The mayor of Oklahoma City, Mick Cornett, for example, has challenged its citizens to lose a million pounds collectively, and cities around the country have worked to ensure that more nutritious meals are served at schools.

Towns and cities like Louisville, Ky., often serve as laboratories where new policies can be tested and tweaked, to develop public support that then unfolds across states and even nationally. The federal law passed last December that will set nutritional standards for food sold or otherwise provided in schools nationally is one example: Requirements for healthier foods in school cafeterias began in local school districts.
“This battle will involve policy changes at all levels of government, but it is easier fought locally because it allows greater accountability to ensure implementation and addresses the unique needs of communities,” William H. Roach Jr., chairman of the American Heart Association, wrote in an e-mail.

Margo G. Wootan, director of nutrition policy at the Center for Science in the Public Interest, a nonprofit research and advocacy group, said state restaurant groups were leading the recent pushes for state legislation that pre-empted local governments. “Politicians go out to eat a lot, so restaurant owners know their state lawmakers very well,” Ms. Wootan said. “They’re quite formidable opponents.”

State legislators who have sponsored pre-emptive legislation in Florida and Alabama say they were contacted by their state’s restaurant associations, which expressed concern that California’s latest food rules would be adopted by their own local governments.

For example, the Los Angeles City Council banned fast food restaurants in South Los Angeles, where rates of poverty and obesity are high. In April, the Santa Clara County supervisors adopted a policy that forbids fast food restaurants from selling meals with toys, like those connected with movie promotions.

“We didn’t want to give those kinds of things a chance to become a problem for the restaurant industry here,” said Steve Crisafulli, the Florida state representative who sponsored the law limiting local authorities’ ability to regulate restaurants in their jurisdiction. “It’s always easier to take care of these things before they become an issue rather than after the fact.”

Florida’s provision was tucked into a bill that largely concerned amendments to state regulations on vacation rentals, and assigned the state the sole authority over “matters related to the nutritional content and marketing of foods” in restaurants and hotels.

Mr. Crisafulli said he was contacted by the Florida Restaurant and Lodging Association, which was represented by Monesia T. Brown, a lawyer who had served as an aide to former Gov. Charlie Crist. Neither Ms. Brown nor the association responded to requests for comment.
Ken Johnson, a member of the Alabama House of Representatives, said legislation there that was signed into law by the governor last month. “I was approached by some local restaurant owners and the state restaurant association, who told me about the dilemma they might find themselves in if we suddenly had a hodgepodge regulation across the state, with one local entity requiring nutrition labeling on menus and another requiring something different,” Mr. Johnson said.

He said that as a small businessman himself, he could understand how onerous such a patchwork of regulation might become. He decided to support the legislation, he said, even though no Alabama municipality has imposed regulations related to obesity on restaurants.

Mr. Johnson said tackling obesity was not the government’s responsibility. “Government isn’t shoving this bad food down our throats,” he said. “It’s a lack of self-discipline many times, and even if we, say, limited a hamburger to being no more than 200 calories, it doesn’t mean I won’t choose to eat four of them.”

One of the broader state laws pre-empting local governments from enacting obesity-related restaurant ordinances was signed Thursday in Ohio. Embedded in the 5,000-page budget law, that statute gives the state’s director of agriculture “sole and exclusive” authority to regulate the use of consumer incentives in food marketing and prohibits localities from requiring menu labeling and using incentives and laws to address “food-based health disparities.”

The statute may nullify a law passed by the Cleveland council in April that banned restaurants and food makers from using “industrially produced” trans fats in products. Joe Cimperman, the Democrat who heads the council’s public health committee and championed the new law, said the legal department had told him that the provisions in the state budget would effectively rescind that law.
“What the heck does this have to do with the budget?” Mr. Cimperman asked.

If anything, Mr. Cimperman said, Cleveland’s ban on trans fats — it is part of a new program called “Healthy Cleveland” that also aims to increase physical activity, reduce smoking and improve access to healthy foods — will save money. “If we are able to make people less obese, if we lessen the rate of childhood heart disease, it’s going to save taxpayer money, which as I understand it is a bedrock principal of conservative politics,” he said.

Scott Oelslager, the Ohio state senator who sponsored the budget amendment that threatens Cleveland’s ban, did not return requests for comments.

Jarrod Clabaugh, a spokesman for the Ohio Restaurant Association, declined to comment. The association enlisted Mr. Oelslager’s help when it failed to prevent passage of the Cleveland ordinance, The Plain Dealer of Cleveland reported.

Supporters of the Ohio law had argued that restaurant owners were moving to reduce the use of trans fats and that requiring them to document that process would only add to their costs. Richard Mason, the association’s director of government affairs, told The Plain Dealer that he had sought the state legislature’s help because what the city had done might serve as a template for other Ohio localities.
Mr. Cimperman said the city was prepared to fight the state law in court. “This is a home rule issue,” he said. “This city is older than the state of Ohio, and this is its decision to make, not the legislature’s.”